Pharmacists in Illinois score a victory for conscientious objection — for now. Nationwide, will conscience-protection issues end up at the Supreme Court?

BY ELENOR K. SCHOEN

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Posted 4/29/11 at 9:30 AM

SPRINGFIELD, Ill. — A state judge in Illinois has ruled that pharmacists cannot be forced to dispense emergency contraceptives against their personal beliefs.

Sangamon County Circuit Judge John Belz made the decision on April 5, stating that the requirement to sell “morning after” contraceptives violates the state’s conscience law.

The ruling was the latest outcome in a six-year legal battle by pharmacists Luke VanderBleek and Glenn Kosirog and the three drug stores they operate. Believing emergency contraceptives can act as an abortion-causing agent, they sued over the 2005 rule imposed by then-Gov. Rod Blagojevich. The former governor, who is facing his own legal difficulties in connection to his alleged “sale” of Barack Obama’s U.S. Senate seat, imposed the rule because of the refusal of a Chicago pharmacist to fill two customers’ “morning-after pill” prescriptions.

Blagojevich’s executive order insisted that all pharmacists and pharmacies have available another pharmacist willing to fill the medications objected to by the on-staff pharmacist.

“Our regulation says that if a woman goes to a pharmacy with a prescription for birth control, the pharmacy, or the pharmacists, is not allowed to discriminate or to choose who he sells it to, or who he doesn’t sell it to,” Blagojevich explained in an April 2005 Washington Post article. He also set up a toll-free hotline for complaints about other prescription rejections. (Although Plan B can now be purchased without a prescription, concerned pharmacists refuse to stock the over-the-counter version, as well.)

A circuit court originally dismissed the pro-life pharmacists’ claim, but the Illinois State Supreme Court ruled in 2008 that the case should proceed, as the plaintiffs had presented sufficient evidence of potential harm to warrant having their case heard.

The latest ruling will temporarily uphold Illinois’ existing Health Care Right of Conscience Act. It allows medical personnel the right to decline a service or procedure if it goes against their beliefs. In June, the court will consider the pharmacists’ request for permanent protection.

The Illinois Attorney General’s office announced right after the April 5 ruling that it planned to appeal.

Expressing relief following the trial, VanderBleek reiterated his reason for refusing to fill “morning after” pills. “Women are instructed to take this medication without regard that she may be carrying a human life,” he said.

Planned Parenthood’s director of legislative affairs, Brigid Leahy, emphasized that the decision applies to all prescribed medications, therefore allowing pharmacists to impose their moral beliefs on all patients.

“That should give all Illinoisans cause for concern,” Leahy said in an April 7 statement to Medill Reports, a Northwestern University publication.

Leahy noted that the drug’s brief window of effectiveness might make it difficult for women living in smaller communities with fewer pharmacies or at a distance from a participating drugstore. She also suggested that certain pharmacies might stop carrying the pill completely.

“I think that all women should be outraged that their right to medical care could be trumped,” she said.

But Kosirog argued that there was no reason that his decision would affect the accessibility of the drug because, “I can count on both hands other pharmacies in our area where they could get it,” he told Johnson.

In its ruling, the circuit court found “no evidence of a single person who ever was unable to obtain emergency contraception because of a religious objection” and that the state government did not “provide any evidence that anyone was having difficulties finding willing sellers of over-the-counter Plan B, either at pharmacies or over the Internet.”

The VanderBleek and Kosirog pharmacies, the judge stated, “are within either reasonably close walking or driving distance to emergency-contraception distributors, and … emergency contraception is also available over the Internet.” The court found further that the state government “conceded that any health impact from plaintiffs’ religious objections would be minimal.”

“We believe we’re in the practice of pharmacy to preserve life and to take away pain and suffering,” VanderBleek commented in an April 6 Associated Press story, “and we’re not really there for the comfort and convenience of some who would want to end life early or to abort life. We wouldn’t stock or dispense any sort of medicines that we thought were intended to and had the ability to sacrifice human life.”

American Center for Law and Justice senior counsel Francis Manion, who argued the motion on behalf of the pharmacists, said in a recent interview that if the state attorneys really do appeal, “they are really facing an uphill battle because they failed to produce at trial any evidence in support of their arguments.”

“The district court’s factual findings in this regard are explicit and will make a reversal on appeal highly unlikely,” he added.

“One of the things that came out at trial was the fact that Illinois officials invited Planned Parenthood to the table to assist them in writing this law,” Manion continued. “We know that the director of the Illinois Department of Professional Regulation — the person responsible for drafting the law — did not seek input from religious objectors or pro-life pharmacists because we asked them. They admitted they did not [seek such input] under oath in his deposition and at the trial. They never thought to consult with anyone from the other side.”

“Now that the court has found this law to be invalid on both constitutional and statutory grounds, perhaps states considering similar legislation will recognize that they also need to consider the position of pro-life health-care professionals,” he suggested, adding: “The First Amendment demands nothing less.”

The Battle Continues

Manion believes the struggle to defend conscience rights “will continue to be a state-by-state struggle, although the fact that Judge Belz in this case found that Illinois’ law violated the First Amendment opens up the possibility of this case ultimately ending up at the U.S. Supreme Court.”

Pharmacists for Life International’s president, Karen Brauer, is hoping that a Washington state case — between a pharmacy owner and two pharmacists against Gov. Christine Gregoire and the state Pharmacy Board — might end up before the highest court (see sidebar).

In the meantime, what are health-care professionals — and pharmacists specifically — to do?

“All the conscience laws in the world will only be effective if those whose rights are endangered are ready to fight attempts by government and private entities to ignore them,” Manion suggested.

Brauer explained that pharmacists “can’t rely on traditional professional organizations to protect their right to practice in accordance with their ethical and religious beliefs.”

“Many of these associations have policies directly opposing this right. Planned Parenthood was able to find 30 health-care organizations to sign a petition for [Planned Parenthood’s] continued federal funding, forcing pro-life taxpayers to support the nation’s largest abortion provider,” she emphasized. “They need to remain alert to political activity affecting their practice and respond to it vigorously.”

After the Illinois court victory, Manion recalled the establishment of conscience rights in our nation’s laws. “This country was founded by people with a strong commitment to religious freedom. That’s why freedom of religion is the first freedom protected in the Bill of Rights,” he said. “For government at any level to try to run roughshod over that freedom is to abdicate the government’s primary responsibility.”

Even with state constitutional protections for conscience rights in place, this hasn’t prevented individual states, like Washington, from undermining existing conscience clauses, while other states have passed legislation reinforcing their state’s conscience rights.

Arkansas, Georgia, Mississippi and South Dakotaallow a pharmacist to refuse to dispense emergency contraception drugs. Idaho, Colorado, Florida, Maineand Tennessee have broad refusal clauses that do not specifically mention pharmacists.

On April 5, the Missouri House endorsed a bill specifically allowing pharmacists to refuse to sell the morning-after pill and RU-486. The bill needs another House vote to move it to the Senate.

In January, Nebraska Sen. Pete Pirsch introduced the Freedom of Conscience Act (L.B. 461), which says a hospital or clinic must accommodate an employee’s religious or moral beliefs and practices related to abortion, except in cases in which the patient would be in danger of dying or being injured without it, or to experiments or procedures that destroy a human embryo, cells or tissue. The bill, which is in the Legislature’s Judiciary Committee, covers employees such as physician’s assistants, nurses and pharmacists.

Wisconsin, however, has conscience-rights restrictions buried in the massive budget-related Assembly Bill 75. Under the section on the Pharmacy Examining Board (Chapter 450.095), the law requires that pharmacies “shall dispense lawfully prescribed contraceptive drugs and devices [defined as ‘preventing pregnancy’] and shall deliver them … without delay.”

Under Uniformed Licensure (Chapter 50.375), AB 75 deals with “emergency contraception for sexual-assault victims.” The statute defines these “morning after” pills, once again, as not terminating a pregnancy, but merely preventing one. It goes on to say: “No hospital may be required to provide emergency contraception to a victim who is pregnant, as indicated by a test for pregnancy.” If the rape has just happened, however, the test may be given too soon to detect a pregnancy.

Repeated doses of the new drug “Ella” which is also advertised as a “morning after” pill (but chemically similar to RU-486, used for later-term abortions) would be potent enough to abort both implanted embryos as well as later-term fetuses, according to Pharmacists for Life’s president, Karen Brauer.

Another potential threat to conscience rights is the ongoing discussion surrounding the U.S. Department of Health and Human Services’ (HHS) Conscience Regulation. President Obama has discussed overturning this bill, which offers protection to health-care workers on the federal level.